118. The Juryman's Oath.--The dicasts are a.s.sumed to approach their duty with all due solemnity. They have sworn to vote according to the laws of Athens, never to vote for a repudiation of debts, nor to restore political exiles, nor to receive bribes for their votes, nor take bribes in another's behalf, nor let anybody even tempt them with such proffers. They are to hear both sides impartially and vote strictly according to the merits of the case: and the oath winds up awfully--"Thus do I invoke Zeus, Poseidon, and Demeter to smite with destruction me and my house if I violate any of these obligations, but if I keep them I pray for many blessings."[*]

[*]We have not the exact text of all the dicasts' oath, but we can reproduce it fairly completely from Demosthenes's "Oration against Timocrates."

119. Opening the Trial. The Plaintiff's Speech.--The oath is admirable, but the dicasts are not in a wholly juridical state of mind. Just before the short sacrifice needful to commence proceedings, takes place, old Zenosthenes on the second row nudges his neighbor: "I don't like the looks of that Lamachus. I shall vote against him." "And I--my wife knows his wife, and--" The archon rises. The crier bids, "Silence!" The proceedings begin: but all through the hearing there is whispering and nudging along the jurors' benches. The litigants are quite aware of the situation and are trying their best to win some advantage therefrom.

Ariston is the first to speak. He has taken great pains with the folds of his himation and the trim of his beard this morning. He must be thoroughly genteel, but avoid all appearances of being a dandy. In theory every man has to plead his own case in Athens, but not every man is an equally good orator. If a litigant is very inept, he can simply say a few words, then step aside with "My friend so-and-so will continue my argument"; and a readier talker will take his place.[*] Ariston, however, is a fairly clever speaker. Having what he conceives a good case, he has obtained the indirect services of Hypereides, one of the first of the younger orators of Athens. Hyperedies has written a speech which he thinks is suitable to the occasion, Ariston has memorized it, and delivers it with considerable gusto. He has solid evidence, as is proved from time to time when he stops to call, "Let the clerk read the testimony of this or that." There often is a certain hum of approbation from the dicasts when he makes his points. He continues bravely, therefore, ever and anon casting an eye upon the CLEPSYDRA near at hand, a huge water-clock which, something like an hour gla.s.s, marks off the time allotted him. Some of his arguments seem to have nothing to do with the alleged embezzlement. He vilifies his opponent: calls Lamachus's mother coa.r.s.e names, intimates that as a boy he had no decent schooling, charges him with cowardice in the recent Mantinea campaign in which he served, hints that he has quarreled with his relatives. On the other hand, Ariston grandiloquently praises HIMSELF as well born, well educated, an honorable soldier and citizen, a man any Athenian would be glad to consider a friend. It is very plain all these personalia delight the jury.[+] When Ariston's "water has run out" and he concludes his speech, there is a loud murmur of applause running along the benches of the dicasts.

[*]These "friends," however, were never regularly professional advocates; it would have been ruinous to let the jury get the impression that an orator was being directly hired to speak to them.

[+]For the depths of personal insult into which Greek litigants could descend there is no better instance than Demosthenes's (otherwise magnificent) "Oration on the Crown," wherein he castigates his foe aeschines.

120. The Defendant's Speech. Demonstrations by the Jury.--It is now Lamachus's turn. He also has employed a professional speech-writer ("logographos") of fame, Isaeus, to prepare his defense. But almost at the outset he is in difficulties. Very likely he has a bad case to begin with. He makes it worse by a shrill, unpleasant voice and ungainly gestures. Very soon many dicasts are t.i.ttering and whispering jibes to their companions. As his harangue proceeds, the presiding archon (who has really very little control of the dicasts) is obliged "to remind the gentlemen of the jury that the have taken solemn oath to hear both sides of the question."

Lamachus fights doggedly on. Having put in all his real arguments, he takes refuge also in blackguarding his opponent. Did Ariston get his wealth honestly? was not his father a rascally grain dealer who starved the people? Yet there is still more impatience among the dicasts. Lamachus now uses his last weapon. Upon the pleader's stand clamber his five young children clad in black mourning garments. They all weep together, and when not wiping their eyes, hold out their hands like religious suppliants, toward the dicasts.[*]

[*]For such an appeal to an Athenian dicastery, see Aristophanes's "Wasps." The pertinent pa.s.sages are quoted in "Readings in Ancient History," vol. I, p. 238-40.

"Ah! Gentlemen of the jury," whines their father, "if you are moved by the voices of your lambs at home, pity these here. Acquit me for THEIR sakes. Do not find against me and plunge these innocent darlings into want and misery, by impoverishing their father."

Appeals like this have swayed more than one jury during the last year, but the fates are all against Lamachus. From a back bench comes a dreaded shout that is instantly caught up by the front tiers also:

"Kataba! Kataba!--Go down! Go Down!"

Lamachus hesitates. If he obeys, he loses all the rest of his defense. If he continues now, he enrages many of the dicasts, who will be absolutely sure to find against him. The presiding archon vainly rises, and tries to say something about "fair play." Useless.

The uproar continues. Like a flock of scared doves Lamachus and all his five children flee incontinently from the tribune, amid ironical cheers and laughter.

121. The First Verdict.--There is silence at length. "The dicasts will proceed to vote," announces the court crier. The huge urns (one of bronze, one of wood) with narrow mouths are pa.s.sed among the benches. Each juror has two round bronze disks, one solid, one with a hole bored in the middle. The solid acquit, the pierced ones convict. A juror drops the ballot he wishes to count into the bronze urn; the other goes into the wooden urn. The bronze urn is carried to the archon, and there is an uneasy hush while the 401 ballots are counted by the court officers. As expected, more than 300 dicasts vote that Ariston is ent.i.tled to damages against Lamachus as an embezzler.

122. The Second and Final Verdict.--Ariston is smiling; his friends are congratulating him, but the trial is by no means over.

If Lamachus had been found guilty of something for which the law provided an absolute fixed penalty, this second part of the proceedings would be omitted. But here, although the jury has said SOME damage or penalty or penalties are due, it has still to fix the amount. Ariston has now to propose to the dicasts a sum which he thinks is adequate to avenge his wrongs and losses; Lamachus can propose a smaller sum and try to persuade the court that it is entirely proper. Each side must act warily. Athenian jurors are fickle folk. The very men who have just howled down Lamachus may, in a spasm of repentance, vote for absurdly low damages. Again, Lamachus must not propose anything obviously inadequate, otherwise the jurors who have just voted against him may feel insulted, and accept Ariston's estimate.[*] Ariston therefore says that he deserves at least a talent. Lamachus rejoins that half a talent is more than ample, even conceding Arison's alleged wrongs. The arguments this time are shorter and more to the point. Then comes the second balloting. A second time a majority (smaller this time, but enough) is in favor of Ariston. The better cause has conquered; and there is at least this advantage to the Athenian legal system, there will be no appeal nor tedious technicalities before a "higher court." The verdict of the dicastery is final.

[*]Undoubtedly Socrates would have escaped with his life, if (after his original condemnation) he had proposed a real penalty to the jury, instead of an absurdly small fine. The only alternative for the dicasts was to accept the proposition of his opponents,--in his case, death.

123. The Merits and Defects of the Athenian Courts.--No doubt injustice is sometimes done. Sometimes it is the honest man who hears the dreaded "Kataba!" Sometimes the weeping children have their intended effect. Sometimes it is the arguments about "My opponent's scoundrelly ancestry" which win the verdict. At the same time, your Athenian dicast is a remarkably shrewd and acute individual. He can distinguish between specious rhetoric and a real argument. He is probably honestly anxious to do justice. In the ordinary case where his personal interests or prejudices do not come into play, the decision is likely to match with justice quite as often perhaps as in the intricate court system of a great republic many centuries after the pa.s.sing of Athens.

Certain features of some Athenian trials have not explained themselves in the example just witnessed. To prevent frivolous or blackmailing litigation it is provided that, if the plaintiff in a suit gets less than one fifth of the ballots in his favor (thus clearly showing he had no respectable case), he is liable to a heavy fine or, in default thereof, exile. Again, we have not waited for the actual closing scene--the dicasts each giving up his colored staff as a kind of voucher to the court officers, and in return getting his three obols (9 cents) daily jury fee, which each man claps promptly in his cheek, and then goes off home to try the case afresh at the family supper.

124. The Usual Punishments in Athens.--Trials involving murder or manslaughter come before the special court of Areopagus, and cannot well be discussed here, but most other criminal cases are tried before the dicasts in much the same way as a civil trial. When the law does not have a set penalty, the jury virtually has to sentence the defendant after convicting him, choosing between one of two proposed penalties. Greek courts can inflict death, exile, fines, but almost never imprisonment. There is no "penitentiary" or "workhouse" in Athens; and the only use for a jail is to confine accused persons whom it is impossible to release on bail before their trial. The Athens city jail ("The House," as it is familiarly called--"Oikema") is a very simple affair, one open building, carelessly guarded and free to visitors all through the daylight.

The inmates have to be kept in heavy fetters, otherwise they would be sure to take flight; and indeed escapes from custody are somewhat common.

125. The Heavy Penalty of Exile.--An Athenian will regard locking a criminal up for a term of years as a very foolish and expensive proceeding. If he has nothing wherewith to pay a round fine, why, simply send him into exile. This penalty is direful indeed to a Greek. The exile has often no protector, no standing in the courts of the foreign city, no government to avenge any outrage upon him.

He can be insulted, starved, stripped, nay, murdered, often with impunity. Worse still, he is cut off from his friends with whom all his life is tied up; he is severed from the guardian G.o.ds of his childhood,--"THE City," the city of his birth, hopes, longings, exists no more for him. If he dies abroad, he is not sure of a decent funeral pyre; and meanwhile his children may be hungering at home. So long as the Athenians have this tremendous penalty of exile at their disposal, they do not feel the need of penitentiaries.

126. The Death Penalty at Athens.--There are also the stocks and whipping posts for meting out summary justice to irresponsible offenders. When the death penalty is imposed (and the matter often lies in the discretion of the dicasts), the criminal, if of servile or Barbarian blood, may be put to death in some hideous manner and his corpse tossed into the Barathron, a vile pit on the northwest side of Athens, there to be dishonored by the kites and crows. The execution of Athenian citizens, however, is extremely humane. The condemned is given a cup of poisonous hemlock juice and allowed to drink it while sitting comfortably among his friends in the prison. Little by little his body grows numb; presently he becomes senseless, and all is over without any pain.[*] The friends of the victim are then at liberty to give his body a suitable burial.

[*]No one can read the story of the death of Socrates in the prison, as told by Plato in the "Phaedo," without feeling (aside from the n.o.ble philosophical setting) how much more humane were such executions by hemlock than is the modern gallows or electric chair.

An Athenian trial usually lasts all day, and perhaps we have been able to witness only the end of it. It may well happen, however, that we cannot attend a dicastery at all. This day may be one which is devoted to a meeting of the public a.s.sembly, and duty summons the jurors, not in the court room, but to the Pnyx. This is no loss to us, however. We welcome the chance to behold the Athenian Ecclesia in action.

Chapter XVI. The Ecclesia of Athens.

127. The Rule of Democracy in Athens.--The Ecclesia, or Public a.s.sembly, of Athens is something more than the chief governmental organ in the state. It is the great leveling engine which makes Athens a true democracy, despite the great differences in wealth between her inhabitants, and the marked social pretensions of "the n.o.ble and the good"--the educated cla.s.ses. At this time Athens is profoundly wedded to her democratic const.i.tution. Founded by Solon and Clisthenes, developed by Themistocles and Pericles, it was temporarily overthrown at the end of the Peloponnesian War; but the evil rule then of the "Thirty Tyrants" has proved a better lesson on the evils of oligarchic rule than a thousand rhetoricians'

declamations upon the advantages of the "rule of the many" as against the "rule of the few." Attica now acknowledges only one Lord--KING DEMOS--"King Everybody"--and until the coming of bondage to Macedon there will be no serious danger of an aristocratic reaction.

128. Aristocracy and Wealth. Their Status and Burdens.--True, there are old n.o.ble families in Athens,--like the Alcmaeonidae whereof Pericles sprang, and the Eumolpidae who supply the priests to Demeter, the Earth Mother. But these great houses have long since ceased to claim anything but SOCIAL preeminence. Even then one must take pains not to a.s.sume airs, or the next time one is litigant before the dicastery, the insinuation of "an undemocratic, oligarchic manner of life" will win very many adverse votes among the jury. n.o.bility and wealth are only allowed to a.s.sert themselves in Athens when justified by an extraordinary amount of public service and public generosity.

Xenophon in his "Memorabilia" makes Socrates tell Critobuls, a wealthy and self-important individual, that he is really so hampered by his high position as to be decidedly poor. "You are obliged,"

says Socrates, "to offer numerous and magnificent sacrifices; you have to receive and entertain sumptuously a great many strangers, and to feast [your fellow] citizens. You have to pay heavy contributions towards the public service, keeping horses and furnishing choruses in peace times and in war bearing the expense of maintaining triremes and paying the special war taxes; and if you fail to do all this, they will punish you with as much severity as if you were caught stealing their money."

129. Athenian Society Truly Democratic up to a Certain Point.--Wealth, then, means one perpetual round of public services and obligations, sweetened perhaps with a little empty praise, an inscription, an honorary crown, or best of all, an honorary statue "to the public benefactor" as the chief reward. On the other hand one may be poor and be a thoroughly self-respecting, nay, prominent citizen.

Socrates had an absurdly small invested fortune and the G.o.ds knew that he did little enough in the way of profitable labor.[*] He had to support his wife and three children upon this income. He wore no chiton. His himation was always an old one, unchanged from summer to winter. He seems to have possessed only one pair of good sandals all his life. His rations were bread and water, save when he was invited out. Yet this man was welcome in the "very best society." Alcibiades, leader of the fast, rich set, and many more of the gilded youth of Athens dogged his heels. One meets not the slightest evidence that his poverty ever prevented him from carrying his philosophic message home to the wealthy and the n.o.ble.

There is no sn.o.bbishness, then, in this Athenian society. Provided a man is not pursuing a base mechanic art or an ign.o.ble trade, provided he has a real message to convey,--whether in literature, philosophy, or statecraft,--there are no questions "who was your father?" or "what is your income?"[+] Athens will hear him and accept his best. For this open-mindedness--almost unique in ancient communities--one must thank King Demos and his mouthpiece, the Ecclesia.

[*]Socrates's regular income from invested property seems to have been only about $12 per year. It is to be hoped his wife, Xanthippe, had a little property of her own!

[+]Possibly the son of a man whose parents notoriously had been slaves in Athens would have found many doors closed to him.

Athenians are intensely proud of their democracy. In aeschylus's "Persians," Atossa, the Barbarian queen, asks concerning the Athenians:--

"Who is the lord and shepherd of their flock?"

Very prompt is the answer:--

"They are not slaves, they bow to no man's rule."

Again in Euripides's "Supplicants" there is this boast touching Athens:--